Everyone celebrated their wedding. The groom was an NRI engineer settled in Boston who came to Punjab to marry Manjeet, a beautiful village girl. No one had ever anticipated that this fairy tale would turn into a nightmare until the groom decided to abandon Manjeet and marry again.
He obtained a divorce decree in US. Subsequently, Manjeet filled a petition in an Indian Court. The court declared the divorce null and void although it hardly had jurisdiction over the foreign decree. Now, her husband is divorced in States but married in India.
According to NCW more than 50 women are facing the issue in Gujarat, Punjab and other parts of the country.
Problem
In such divorce cases the conflict of Private International Law becomes evident. Usually, one party obtains a divorce decree aboard which is not recognized in the Indian Courts on the ground that the foreign court had no jurisdiction over the matter. As a result the marriage is recognized in one country but annulled in the other. Such a person may be tried for Bigamy in India but in the other country he would not be considered guilty.
EX-PARTE JUDGEMENT:
An ex-parte divorce happens when only one spouse participates in the court proceedings. In US, a state has the authority to determine the marital status of that person (who lives in that state) even if it does not have jurisdiction over the other spouse. Usually,the spouse who doesn’t live in the county where the divorce was filed would not be subject to its jurisdiction unless a status exception is present.
Many a times foreign courts grant ex-parte divorce decrees, with one party being unrepresented and thus unheard. Often the parties are unaware about these proceeding too. Due to various practical and financial difficulties; a party may not be able to contest the case. Generally, the wives deprived of maintenance and matrimonial property in these cases.
Recognition of foreign Judgments in India:
The Section 13 of Code of Civil Procedure deals with recognition of Foreign Judgments in India. SC in various decisions noted that a court would have competent jurisdiction if it recognizes the Act or law under which the parties are married. Further, If any foreign judgment is opposed to natural justice, founded on breach of Indian law or obtained by fraud; it would not be recognized in India.
For a court to have competent jurisdiction both the parties must voluntarily and unconditionally submit themselves to the jurisdiction of the said court.
In a leading judgment SC of India ruled :-
1. No marriage between an NRI and an Indian Women which has taken place in India may be annulled by foreign court.
2. Provision may be made for adequate alimony for wife in the property of husband in India and abroad.
Legislations In Other Countries
The (English) Foreign Marriage Act, 1892 and Marriage (Overseas) Act, 1955 in Australia provide for a form of marriage which may be availed by the parties marrying abroad where on of the citizens where at least one of the person to the marriage is a citizen. However, the acts do not affect the validity of these marriages.
Law Commission in its report proposed a legislation similar to the two for addressing the issue of foreign marriages. It suggested that the parties at the time of marriage must be free to choose the law by which they would be governed. Moreover, Indian citizenship should be a prerequisite for the parties to avail the benefits of the proposed legislation.
Recommendations
Precautions by the family:-
1. The family must verify credentials of the groom and his family. They must check his address proof, passport details, his place of work etc.
2. The girl must be made aware of her rights in the foreign country.
3. She must have a separate bank account near her place of residence in case of any emergency.
4. Marriage must be registered.
5. A photocopy of the groom’s passport and other credentials must be kept with the family. Steps to be taken by the government
1. Registration of the marriages must be made compulsary.
2. Bilateral Agreement must be signed with other countries.
3. Spreading awareness and releasing information booklets to prevent fraudulent marriages.
4. Setting up of special cells for counseling and free legal advice in various states.
5. Collaboration with Ministry of Overseas Indian Affairs to deal with the issue.
6. There should be a uniform law for recognition and enforcement of foreign judgments in relation to matrimonial disputes.
7. Assistance must be provided to NRI wives.
Comments
Does the SC think that it has got that much reach that it can prevent foreign courts in different jurisdictions from granting a divorce under the foreign law.
There are many precedents in which sometimes husband won and sometimes wife won..(same kind of facts)
So nothing to say....it will be in process.....
As a matter of fact on perusal of the facts of the case in the matter of Payal Malik Vs Nagesh Malik the decision given by the high court is absolutely not tenable because the case from the side of Malik family is that she was not good to her brother in law and father in law. The Honorable court in its own order said if the families are living “under one roof” are part of the family but much contrary to that in this case he allowed the revisionist to go free. Not only that further he commented that the court below should have considered the foreign court decrees of divorce which is absolutely against the orders of the Supreme Court Of India.
Now the fact is that the matter was for the revision of order passed by the learned high court hence the trail court twas not called for. Passing such orders much contrary to the facts on record is just because the order is passed without the trail court record and will be set a side by the Supreme Court.
But the main question arises what will happen to that hapless lady who was given relief by the lower court in June 2009 but till date she has got nothing. Now this order will further complicate the matter causing unnecessary delay in getting relief to the lady.
Lot of NRI marriages involve Indian spouse immigrating immediately to foreign land. Couple actually spend more times in foreign land. Hence, foreign laws should apply. Laws in countries like USA are much more fair for both sides. It is not like women are getting shafted in foreign land divorces.
Only reason women want to bring issues to India is that they can misuse laws like 498a, DP3 & 4 and extort money out. They are also vindictive and do not want to give divorces to their husband no matter what. They can actually prevent divorces in India even though they have no plan of living together in the future. Thats why they want laws like that. No sane NRI should marry in India.
Get Fiance Visa and marry in foreign land. Avoid Indian government at all cost.
I was the most happy man to hear this judgment but on perusal of the facts and in view of the facts of the case, it is very clear and a fit case to book the defaulters as per the law of the land.
If a wife has lived in USA with husband for majority part of the marriage (4 out of 7), and then she is in India. Husband wants divorce in USA and wife is India, who doesnt want a divorce. If the husband gets a decree from US, is it valid in India then?
And now my brother can re marry in India because US govt already granted divorce and she did not oppose that divorce.
please help us our family is suffering a lot becoz of this issue. please help us
I had an opposite experienced.
I am a US citizen, and I came to India to get married. I did register the marriage in India. We never got along, but it was arranged and I wanted to give it a honest try. She kept her distances, even after marriage. I did file for her to come to the US, and before she could come, I went to India. And I discovered her heart was else where and she never wanted to marry me.
Her parents have persuade her to keep the marriage, but I do not want to continue with it due to being lied to, and being cheated on. It was an horrible experience. I did file a divorce deed, but it is still pending due to them refusing to sign. It has been over 2 years since this pursuit.
When I go back to India, I am afraid they will file an harassment case against me, and will want to some how attempt to change my mind to keep the marriage.
How should I proceed? My parents went and tried to discuss with them, but they refuse to meet. And they are insisting on my presence. I had told the girl that I wanted a divorce when I was with her in India. And I have made up my mind.
Under the assumption she may have had an abortion with the other guy while I was trying to bring here to the US. Let's just say this was weird due to her not letting us consummate the marriage.
Please advise if you know a way to proceed.
You can, get a divorce law in a US court. The additional step will be to service court process on your wife in India and you should ask the US embassy regarding how this shoulld be done procedurally. My guess is that it should follow Indian law of service of process.
After that your US court (where youve filed for divorced) can set a date for appearance and could proceed ex-parte if your wife fails to appear.
Good luck my friend.